Surveillance: Citizens and the State - Constitution Committee Contents

Examination of Witnesses (Questions 560-561)

Professor David Feldman

2 APRIL 2008

  Q560  Baroness Quin: My question has also been touched on to a certain extent, because you did mention earlier on some good aspects of RIPA and also the Data Protection Act. Nonetheless, perhaps you should be given a chance to add anything that you have not added before. Do you think that the surveillance powers currently granted to the state are too broad overall, and does the existing regulatory regime, created by legislation such as the Data Protection Act and RIPA, provide adequate safeguards and restrictions?

  Professor Feldman: The first part of the question, the breadth of the powers, I think, is a very difficult one for me to answer, because it is essentially, I think, a political question rather than a legal one. Agencies need powers to some extent. Particularly when one is dealing with investigative and security agencies, one is dependent on their account of the powers they need to decide whether they are too broad. The exception, I think, is if they seek a power which is one which is simply unacceptable on fundamental principles in any humane society. A power to torture, for example, would, in my view, fall into that category, and a power to detain people for very long periods without any charge would also fall into that category, but leaving aside those sort of fundamentally unacceptable powers, it seems to me, ultimately, to be a question for political judgment what powers should be given. The second part of the question, relating to the safeguards provided by regulatory regimes we have, I think is much easier for me to say something about. The RIPA and Data Protection Act regimes are, as I suggested earlier, fairly well nuanced in terms of the powers that they grant. The powers are identified under RIPA. One has the targeted surveillance, the intrusive surveillance and the covert intelligence sources by different agencies, different criteria for using the powers applied under statute in relation to each of those powers. What I think might need further attention is the authorisation method that is contained in the statute. In relation to the use of those powers—certainly targeted surveillance and use of covert intelligence sources—those are left to be authorised by senior officials within the agencies. When one gets to intrusive surveillance, in relation to the police and other agencies, but not the security and intelligence services, the Surveillance Commissioner has to approve in advance or retrospectively. In relation to the Intelligence Services there is a secretary of state authorisation which is not subject to the Surveillance Commissioner's review, but in relation to all of those there is then a subsequent opportunity to complain to the Investigatory Powers Tribunal, which has jurisdiction. I think the Investigatory Powers Tribunal has yet to prove itself—it has not had enough to do yet perhaps to be clear just how effective it is going to be—but I am a little bit worried about the extent to which these intrusive or relatively extensive activities can be authorised by a senior official of the agency that is going to carry out the activity without the need for external independent scrutiny in all cases.

  Chairman: Professor Feldman, the time is sadly marching on. We have time for one brief final question from Lord Peston.

  Q561  Lord Peston: Just to make clear your view: if Parliament grants powers to anybody of the sort that you are talking about, is it not the case that it is likely that whoever has been granted those powers will always use them over zealously because the consequences are not symmetric? Over zealousness, the noise of the odd individual personal, and so on. Under zealousness leads to a building blown up, people killed and that sort of thing, and I am not very clear in your answer to Lady Quin's question what Parliament can do, or anybody can do, to get rid of that asymmetry? Parliament can say, "These are the powers. We want them used properly", but the fact is that the bias is in that one direction rather than the other and I do not see how Parliament, or the regulator for that matter, could solve that problem?

  Professor Feldman: I think, Lord Peston, I agree with that. Any system of control which relies on decision-making by a whole range of people in an organisation or series of organisations will only work as well as the people who are operating it allow to it work. As you say, people in a lot of these situations tend to be risk-averse, and understandably so. One can try to create a climate, through political and managerial means, where risk-aversion becomes the exception rather than the norm but it will always be around somewhere, but what I would say is this. It is better, I submit, to have a system in which the criteria that you want to have applied are clear and the circumstances in which they are to apply are clear and have, ideally, legal authority behind them, so that you can take some kind of action if it turns out that they have been misused or abused, than a situation in which the powers are unclear or left entirely to the discretion of the decision-maker, in which case accountability becomes extremely difficult and there will be a temptation to stretch things ever further on the part of the people operating the powers.

  Chairman: Professor Feldman, thank you very much indeed for joining the Committee and for the evidence you have given, which has been extremely interesting for all of us. We are deeply grateful.

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